Employment tribunal fees - the next steps

The impact of the Supreme Court’s decision on employment tribunal fees and the multiple uncertainties raised will be welcomed by employment solicitors, for months, if not years to come.

What will happen if a client paid a fee?

The Supreme Court made it clear - all fees paid between 2013 and now will have to be refunded by the lord chancellor. Justice minister Dominic Raab said the government would stop taking fees for employment tribunals ’immediately’ and begin the process of reimbursing claimants, dating back to 2013. It all sounds relatively straight-forward doesn’t it?

What if the respondent paid the claimant’s fees? My guess is that some ‘lucky’ civil servants will have to go through each claim and find out what happened in relation to the fees.

What can I do if a claimant wants to bring a claim today?

The employment tribunals staff will need to update the online system. The tribunal rules will need to be rewritten and there will need to be consultation. Then, the online claim form system will need to be updated. It may remain in place for quite some time.

What can you do in the meantime? If you use the online system you will find that this has been suspended. You cannot revert to any previously saved claims. You can still make a claim on paper, and send it by post to the relevant tribunal office in England and Wales or Scotland. It has been confirmed that there are no fees payable and that the online system is expected to be restored this week following upgrading to remove references to charging fees.

What can I do if a client were put off by the tribunal charging fees?

It is possible to obtain an extension of time in employment tribunals if the claimant can show that it was either not reasonably practicable to bring a claim in time or that it is just and equitable to obtain an extension of the deadline to bring a claim (depending on the type of claim). Will tribunals be persuaded to allow claimants to bring a claim when he/she was stopped from doing so by the fees regime which the Supreme Court now says is unlawful? If so, how quickly would the claimant have to bring their claim following today’s decision? These are points that in my view would be open to argument by a claimant bringing a claim before a tribunal for the first time who was significantly impacted and put off by the prospect of paying a tribunal fee that could have amounted up to £1200 (£250 issue fee and £950 hearing fee for unfair dismissal claims).

What will happen to the fees regime in employment tribunals?

I think it is unlikely the fees regime will be abolished entirely. It is not beyond the realms of possibility that the government will issue a consultation paper and then bring in a different fees regime. The fees may well be lowered. In addition, there may be new measures (eg the employer may be asked to pay a fee).

The key points of the judgment in summary format are as follows:

The government was acting unlawfully when it introduced fees for employment tribunal cases, conventions of the UK parliament and that EU Law were breached also.

It also said that claimants would not bring cases to employment tribunals because paying the fees would render the compensation element futile.

The court’s summary added that claimants with low incomes could not afford the fees.

Lady Hale, who will serve as the new president of the Supreme Court in October 2017 stated that the employment tribunal fees regime resulted in indirect discrimination against female employees.

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How long will it be before the senior courts consider the impact of fee-increases in the County and Family Court, which the government has increased to the point at which civil litigants are subsidising criminal justice?

Also an employment lawyer. Many issue and hearings fees have been paid by Respondents to Claimants in settlements. They'll not be repaid unless the MOJ scheme reimburses them direct on proof a) of the COT3 and b) they did actually pay the monies. R won't be able to claim the fee off C unless the COT3 had the unusual foresight of providing for it (ie in the future event fees were declared unlawful.) So those Claimants may get a windfall.
Agreed, there must be scope in some cases for time extensions. Clearly for some it wasn't feasible to bring a claim because they couldn't afford fees. In practice I suspect there'll be relatively few of these claims. But we'll see.
We should all remember that a key reason for fees was political. Following the 2010 general manifesto commitment to reduce perceived burdens on small business. Cap on the unfair dismissal compensatory award to a year and increasing the qualifying period to two years. I just wonder if the government will even try fees v2. Not only were so many restrictions placed on them by the SC, the current government a) has bigger priorities with Brexit, b) may struggle to get it though. If it happens, I suspect it'll need a new election victory mandate. Something far from certain.

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